Platell v Midland Brick Company Pty Ltd - [2003] WADC 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PLATELL -v- MIDLAND BRICK COMPANY PTY LTD [2003] WADC 1

CORAM: REGISTRAR KINGSLEY

HEARD: 26 NOVEMBER 2002

DELIVERED : 10 JANUARY 2003

FILE NO/S: CIV 3476 of 2001

BETWEEN: HELLENE PLATELL
Plaintiff
AND
MIDLAND BRICK COMPANY PTY LTD (ACN 008674244)
Defendant

Catchwords:

Practice - Adequacy of particulars of statement of claim - Some particulars not being part of pleaded case

Legislation:

Factories (Health and Safety) Regulations

Fatal Accidents Act 1954

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr P K Walton

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

REGISTRAR KINGSLEY: The plaintiff's claim is pursuant to the Fatal Accidents Act 1954 as amended. The plaintiff's husband was employed with the defendant from November to February in the years 1972 to 1973, 1973 to 1974 and 1974 to 1975. The plaintiff pleads that in the course of employment her husband was exposed to inhalation of asbestos fibres, particle and dust. Inhalation of asbestos occurred because the plaintiff's husband used gloves made of material containing asbestos and worked in and near areas on the premises of the defendant where asbestos was present.
Paragraph 6 of the statement of claim particularises the exposure to asbestos. The majority of the paragraphs refer to the plaintiff's husband working under or near, working in or near, or working at or near certain parts of the defendant's premises where there was material containing asbestos.
The defendant has sought particulars of certain paragraphs of the plaintiff's statement of claim and that request has been answered by the plaintiff. However the defendant takes exception to some of the answers.
The White Book records that the function of particulars is to:
1.Inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved.
2.Prevent the other side from being taken by surprise at the trial.
3.Enable the other side to know what evidence they ought to be prepared with and to prepare for trial.
4.Limit the generality of the proceedings or of the claim or the evidence.
5.Limit and define the issues to be tried and as to which discovery is required.
6.Tie the hands of the party so that they cannot without leave go into any matters not included.
(authorities omitted)
Request 1 refers to par 6 of the statement of claim. The defendant seeks particulars of;
the location (proximity and direction) where the plaintiff's husband was required to work,
the periods of time worked in a particular location or the periods of time material containing asbestos was cut, scrubbed, removed and/or installed,
the respective locations of the premises where roofing or ceiling sheets made of material containing asbestos were cut, scrubbed, removed and/or installed,
the duties which the plaintiff's husband was required to perform that necessitated him being in that location and for that period of time.
In my opinion the defendant seeks a degree of precision from the plaintiff that is impossible to give. The only source of information of that precision would be from the plaintiff's husband and obviously that information is impossible to obtain. Accordingly the defendant is only entitled to the best particulars that can be obtained and in my opinion the answer provided gives the best particulars that can be given.
However I do agree with defendant's counsel that there is a degree of tension between the pleaded case and responses (i) and (ii). The pleaded case makes no mention of the plaintiff's husband working on brick saws, cutting bricks and accordingly I would strike responses (i) and (ii).
Request 4(a)(ii) seeks particulars of the basis upon which the defendant knew or ought to have known of the risk of damage or injury. The response by the plaintiff is that the knowledge of the health consequences consequent upon exposure to asbestos could have been or ought to have been accessed or acquired by the defendant through a medical practitioner or by itself. The plaintiff details the knowledge in a document entitled Particulars of Available Literature. The defendant's counsel attacks the Particulars of Available Literature in saying that it is not industry specific. Further in detailing the Particulars of Available Literature in such a manner creates an unreasonable burden for the defendant in that it would have to deal with all the allegations contained in the particulars.
I am of the opinion that it is not helpful to the defendant to simply provide a document which contains all available literature without there being some basis why that literature ought to have come to the attention of the defendant. As I understand it, the plea in par 7 of the statement of claim is that the defendant ought to have known that inhalation of asbestos fibres was extremely injurious. This knowledge, the plaintiff submits, could have been acquired by the defendant upon enquiry or from a medical practitioner consulted by the defendant. However the information is not case specific or industry specific and in my opinion is too broad. I will strike response 4(a)(ii).
Request 4(d) seeks particulars of the warnings the defendant should have provided to assist the plaintiff's husband with his own protection and the information the defendant should have provided to assist the plaintiff's husband with his own protection. The response is that the plaintiff should have been warned that inhalation of asbestos was dangerous to his health and that the plaintiff should have been given information that the inhalation of asbestos was dangerous to his health. Presumably in both cases the reference to the plaintiff is a reference to the husband of the plaintiff.
The plaintiff's case is that the defendant ought to have known that inhalation of asbestos fibres and dust was extremely injurious and that in the absence of proper precautions the plaintiff's husband might inhale asbestos fibres and dust and as a result suffer injury. The defendant's counsel submits that it is not plain whether the plaintiff is pleading that inhalation of asbestos per se is dangerous or whether inhalation of a specific amount of asbestos fibre is dangerous. In my opinion the pleading on its face is clear: the plaintiff pleads that inhalation of asbestos fibres is injurious to health and that the particulars refers back to the pleaded case. I see no objection with the response given to request 4(d)(i) and (ii).
The defendant seeks the particulars of the knowledge in par 7, which would have been available to the defendant on enquiry, be struck out on the same basis as that in request 4(a)(ii). That issue has already been dealt with in par 9 above.
Certain of the responses to the defendant's request refer to reg 14 of the Factories (Health and Safety) Regulations. Regulation 14 refers to work in a factory carried on in a confined space where, because of the dimensions of the compartment or space, a worker is required to work in a stooped or otherwise cramped position or without proper ventilation. There is no allegation in the statement of claim that the plaintiff's husband was working in a confined space or working in such a manner that he was required to work in a stooped or otherwise cramped position. In my opinion the particulars in relation to reg 14 do not reflect the pleading and ought be struck out.
Paragraph 6 of the defendant's chamber summons seeks particulars of par 12(c) of the statement of claim. Paragraph 12(c) refers to loss of financial support and pleads that until the onset of his illness the plaintiff's husband was self-employed operating a pharmacy in Preston Street and but for his illness and death the plaintiff's husband would have continued to work until age 65.
The response by the plaintiff states that the plaintiff's husband intended to purchase another pharmacy which would have increased his earning capacity to at least $100,000 gross per annum by July 1996. The defendant's counsel submits that there are no material facts to support those particulars. The material facts are the fact that prior to his death there was financial support and now that support has been lost. What the particulars are indicating is that the financial support would have come from operating the Preston Street pharmacy and there was an intention to purchase another pharmacy. In my opinion this is not a matter of particulars but of interrogatories. In my opinion the particulars supplied are proper.
Paragraph 7 of the defendant's chamber summons seeks particulars of the nature of household and other assistance that the plaintiff's husband would have provided. The response by the plaintiff is that the plaintiff would have been dependant upon her husband for household and other assistance. In my opinion it is unhelpful to the defendant to simply state household assistance without some indication as to the type and nature of household assistance. In any event in my opinion the words "other assistance" is too broad and ought be struck.
I will hear from counsel as to the form of orders sought and on costs.